Kittle v. State

• Decision Date: 03 May 1977
• Docket Number: 8 Div. 894
• Citation: 362 So.2d 1260
• Parties: Braxton Lee KITTLE v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 1260

362 So.2d 1260

Braxton Lee KITTLE v. STATE.

8 Div. 894.

Court of Criminal Appeals of Alabama.

May 3, 1977.

Rehearing Denied May 24, 1977.

T. J. Carnes of Carnes & Carnes, Albertville, for appellant.

William J. Baxley, Atty. Gen., and Jane LeCroy Robbins, Asst. Atty. Gen., for the State.

PER CURIAM.

This is an appeal from a conviction for selling amphetamine, a controlled substance, in violation of the Alabama Uniform Controlled Substances Act of 1971. Code of Alabama, 1973 Cum. Supp., Tit. 22, § 258(33). Defendant was sentenced to imprisonment for nine years.

Defendant was indicted on October 2 and arraigned on October 22, 1975, at which time he pleaded not guilty, and his case was set for trial on December 1, 1975. On December 3, 1975, defendant requested a continuance of the case, which was granted, and the case was set again for trial on April 5, 1976. On March 31, 1976, a motion was filed by defendant attacking the composition of the jury roll and jury box of Marshall County. There was a hearing on the motion on April 2, 1976, at which defendant and his attorney were joined by other defendants by their attorneys, who apparently had filed similar motions. The motion is referred to by counsel for appellant and counsel for appellee as a motion to quash the venire. Appellant urges that the denial of such motion constituted prejudicial error that should result in a reversal of the judgment.

In support of the motion defendant relied largely upon the testimony of the clerk of the Marshall County Jury Commission and one of the members of the Commission. In addition, defendant introduced the testimony of the clerk of the Circuit Court and the registrar of Marshall County and a deputy clerk of the Circuit Court.

Appellant vehemently criticizes the members of the Jury Commission and strongly argues that they failed miserably to measure up to their duties under the law. We should say that there are many indications in the evidence that they failed to comply with all their duties.

The original motion relative to the jury complained of the composition of the "venire." An amendment to the motion substituted the words "jury roll" for "venire." In accordance with such amendment defendant's motion was not addressed to the composition of the jury venire or jury panel that had been drawn and summoned for the week of his trial, from which a jury to try him was selected. We find no complaint made as to such venire.

The motion as amended contains five groups of complaints as to the composition of the Marshall County jury roll. It asserts that, at the time, the jury roll did not reflect a representative cross-section of persons in the county qualified for jury service in that it contained

(a) a disproportionately larger number of men than women;

(b) a disproportionately larger number of older persons than younger persons;

(c) a disproportionately larger number of married persons than unmarried;

(d) a disproportionately larger number of owners than non-owners of real estate;

(e) a disproportionately larger number of householders than non-householders.

It is charged in the motion in effect that the complained of composition of the jury roll was caused by "a systematic and intentional exclusion" from the jury roll of persons within such disproportionately smaller groups on the roll.

There is evidence to the effect that the number of men on the jury roll was disproportionately larger than women, that the number of persons between nineteen and thirty years of age was disproportionately smaller than other age groups. A marked disparity is to be found between males and females; seventy-three percent of the persons on the roll were males and twenty-seven percent females as opposed to the Marshall County 1970 census of 26,284 male and 27,927 female. A striking disparity is also to be noted in some of the age groups, particularly persons between nineteen and twenty-five years of age.

As to the disparity between the old and the young and between male and female, this Court has recently spoken through now Presiding Judge Tyson in Giddens v. State, 333 So.2d 615 (Ala.Cr.App. 1976) and James v. State, 337 So.2d 1332 (Ala.Cr.App. 1976).

Included in the contention that young people were disfavored in the composition of the jury roll is reference to the failure to include but an extremely small number of persons 19 and 20 years of age. The time for the annual meeting of the Jury Commission for making the jury roll is between August 1 and December 20 of the year. Code of Alabama, Recomp. 1958, Tit. 30 § 20. The law relieving persons 19 years of age or over of the disabilities of non-age became effective July 2, 1975. Act No. 77, Regular Session 1975. In Giddens, it was stated:

"Appellant contends that his motion to quash the venire should have been granted in view of the State's admission that the jury lists did not include 19 and 20 year olds.

"We note that at the time of appellant's trial in October of 1975, Act No. 77, Regular Session 1975, had been in effect less than three months. Furthermore, the Attorney General's opinion which was introduced by appellant at the hearing on his motion to quash and which construed Act No. 77 as in fact lowering the minimum age for jury service in this state to 19 was dated August 28, 1975. Moreover, while there is testimony in the record which might indicate otherwise, Charles Edward Lawler, a member of the Lee County Jury Commission, testified that the Commission had begun compiling a list of 19 and 20 year olds but that it would "take 6 months, probably" to complete the job.

"Viewed in this light, we do not feel error was here shown. Many courts have of necessity recognized an allowable administrative lag time between the effective dates of laws lowering the minimum age for jury service and the additions of the newly eligible jurors to the jury lists. United States v. Osborne, 8 Cir., 482 F.2d 1354; United States v. Olson, 8 Cir., 473 F.2d 686; United States v. Nakaladski, 5 Cir., 481 F.2d 289; United States v. Kuhn, 5 Cir., 441 F.2d 179. See also United States v. Gooding, 5 Cir., 473 F.2d 425 where the lag time was three years, four months.

"Though not necessary to a resolution of this appeal, we would only point out a majority of those courts confronted with the issue, have held that 'young persons' per se do not constitute an identifiable group for purposes of determining whether or no a particular jury system reflects the requisite cross-section of the community. United States v. Briggs, D.C., 366 F.Supp. 1356 (21-29 years of age); Connell v. State, 56 Ala.App. 43, 318 So.2d 782 (18-25 years of age); Williamson v. State, 52 Ala.App. 617, 296 So.2d 241 (under the age of 35). See also Hurley v. State, Court of Criminal Appeals, 335 So.2d 183, and cases cited therein. See also Hamling v. United States, 418 U.S. 87, 94 S.Ct. 2887, 41 L.Ed.2d 590."

In James, relative to the jury roll or box in Bibb County composed of 37.2 percent females, whereas the actual percentage of females in Bibb County was 52.1 percent, it was held that there was no basis for quashing the jury venire. The court said at 1337:

"We note on the outset that the appellant has the initial burden of showing the existence of purposeful discrimination of women on the account of their sex from jury participation. Butler v. State, 285 Ala. 387, 232 So.2d 631 (1970). As pointed out by Mr. Justice Almon, then a member of this Court, in Junior v. State, 47 Ala.App. 518, 257 So.2d 844, cert. denied, 288 Ala. 744, 257 So.2d 852 (1971):

" '. . . (P)urposeful discrimination must be proven and may not be assumed or merely asserted, and the quantum of proof necessary to establish such fact is a matter of federal law.' (Authorities cited)"

". . ..

"In any event, we do not feel that the appellant has here met the first of his 'two-fold burden' in establishing a prima facie case. A reading of several federal cases involving the issue of systematic exclusion of women indicates that a greater percentage of disparity than appears here in the instant case must be shown in order to raise an inference of discrimination. United States v. DiTommaso, 405 F.2d 385 (4th Cir. 1968) (Prima facie case not met by evidence that women, though constituting 52.1% Of eligible population had average representation of 29%); United States v. Butera, supra (1 Cir., 420 F.2d 564) (52% True cross section 36% Actual representation in jury pool); see also United States v. Bryant, 291 F.Supp. 542 (D.Me. 1968). Butera supra, indicates that at least a thirty percent underrepresentation of women must be shown in order to raise a rebuttable inference of discrimination."

Giddens and James supra, answer adversely the major contention of defendant as to the jury roll, that is, that it was weighted against females and against youth, unless we can say that there was purposeful, invidious discrimination against them. In some portions of the evidence there may be found gleanings to that effect, but the testimony taken as a whole shows the contrary. Although the efforts did not succeed in raising the quota of the proportionately smaller groups to an extent aspired to by some, the evidence is to the effect that special efforts were made to increase the quotas of them. Special attention was given to the desirability of placing more names of young people in the box or on the roll. The Commission consisted of only two members, during part of the time. There is evidence that one of them employed an outsider to do most of the work required of such commissioner, which we do not condone. Nevertheless, there is no substantial evidence that a commissioner, a clerk or anyone working for the Commission was in any way opposed to a proportionate representation of all groups and classes.

It should be readily observable that a jury roll or jury box, without any intentional exclusion of or invidious discrimination against women and young people, may have a consistency...